In Ecuador, defamation case could set dangerous precedent

A controversial
2011 defamation verdict against the leading
Ecuadoran daily El Universo, which became
a symbol of vastly deteriorating press conditions under President Rafael
Correa, appears headed to a final determination. The nation's highest court is
due to hear the newspaper's appeal, although the hearing date itself is still subject
to intense debate. The ramifications are enormous for free expression in
Ecuador: The verdict, if upheld by the high court, could bankrupt the newspaper,
put its managers in jail, and send a chill quashing dissent for years
to come. As it fights for its existence, the paper has mounted an aggressive defense
that includes an allegation that the trial judge allowed the president's own lawyer
to write the verdict.

Much is at
stake, including the Ecuadoran government's reputation, when the National Court
of Justice finally hears the appeal from El
Universo. Over the past week, disagreements between El Universo and the government extended to the date of the parties'
hearing before the high court and the selection of judges who'll hear the appeal.
On Friday, El Universo's scheduled
hearing was uncertain even hours before it was set to begin, with the
government insisting it would happen and El
Universo reporting it would not. The hearing was ultimately postponed, and the
local press is now reporting that a new date could be announced at any time.

But whether the
high court hearing is tomorrow, next week, or next month, El Universo is close to exhausting domestic remedies in its effort
to overturn a verdict that stunned analysts throughout the hemisphere. In July,
the Guayaquil-based paper's opinion editor, Emilio Palacio, and three of its
executives, Carlos Pérez Barriga, César Pérez
Barriga, and Nicolás Pérez Barriga (who are brothers), were sentenced to three
years in prison apiece and a total of $40 million in damages on charges of defaming Correa. The charges stem from Palacio's February 6 column titled "NO to lies,"
in which he repeatedly referred to Correa as "the dictator." In
reference to a police uprising in September 2010, during which three people
were killed, Palacios alleged that Correa had ordered troops to fire "without
warning on a hospital full of civilians and innocent people," and
insinuated that these actions could constitute a crime against humanity. Correa,
who sought refuge inside the hospital after being accosted by protesters and rescued
by Ecuadoran soldiers, denies ordering troops to fire.

The president has a long record of responding in an aggressive
and adversarial way to critical news coverage. A CPJ special report published in
September found that Correa's administration has
led Ecuador into a new era of widespread repression by filing debilitating
defamation lawsuits in civil and criminal courts, pre-empting private news
broadcasts, enacting restrictive legal measures, and smearing critics.

The trial ruling against El Universo was upheld by an appeals court in September. The National Court
of Justice upheld Palacio's sentence in late December, although the
journalist had fled to Miami several months earlier. Whenever the executives
and representatives of the newspaper have their day before the high court, it could
be one of the last opportunities to ensure a future for the daily, which is the
government's most vocal critic.

El Universo's defense team is pursuing several avenues in challenging
the verdict. The delay in the high court hearing stemmed from a motion seeking to replace the judges selected for the appeal, who the defense said
were biased in favor of the president. By delaying the hearing, they hoped to plead
the case in front a new set of justices who would take the bench at the end of
the month. That request was denied on Monday, but the defense says it will
appeal.

Separately, El
Universo has alleged that the initial July 2011 verdict issued by Judge
Juan Paredes was, in fact, written by Correa's own lawyer, Gutemberg Vera. Many
critics expressed suspicion back in July, when Paredes issued a 156-page
decision less than 24 hours after the trial concluded. El Universo obtained a court order allowing it to clone Paredes' hard
drive for forensic examination. A domestic consultant found irregularities in
the document, but a U.S. consultant hired by the defense went further and said the
judge's decision was actually written by Vera. The U.S. consultant, which compared
the file that contained the verdict with documents written by Vera, noted that the
documents shared a common Microsoft Word user name: "Chucky Seven." Paredes and
Vera denied the defense allegation. Parades' lawyer pointed out to reporters that Chucky
Seven is the user name for many pirated versions of Word, and thus exists on
thousands of computers. El Universo has
filed a criminal malfeasance complaint against Paredes based on the allegation that
the judge did not write his own ruling. But the U.S. report is not admissible in
court, including during the newspaper's own appeal, because the hiring of the U.S.
consultant was not authorized by the court.

Regardless of who wrote the ruling, international
legal experts have called it a dangerous precedent. As CPJ research has shown,
the decision contradicts a mounting body of
international legal opinion that affirms that public officials should not enjoy
protection from scrutiny. It also runs counter to an emerging consensus in Latin America that
civil remedies provide adequate redress in cases of alleged defamation. El Universo solicited the opinion of
several legal experts on the decision's reasoning. Jorge Mosset Iturraspe, professor of law at
the University of Buenos Aires, wrote:

Liability
for criminal offenses, as with civil infractions, must be established and based
upon damages that have been claimed and proven beyond a doubt. ... It goes without saying that the amount requested
by the claimant is by far excessive; one might even call it absurd or
unprecedented in Latin American law. ...The freedom of the press, the right to
report and to express one's opinion, is consecrated in our constitutions and
the international treaties we have ratified. This sentence ...surpasses the
limits of reasonableness and appears to have been motivated by the wish to not
recognize or attack that very freedom.

Sara Rafsky is research associate in CPJ's Americas program. A freelance journalist in South America and Southeast Asia, she was awarded a 2008 Fulbright Grant to research photojournalism and the Colombian armed conflict.

Comments

The "three people" killed were all members of the rescue team. The protesters opened fire on them when they were evacuating Correa from the hospital.
According to the Ecuadorian Código Penal (Art. 489), libel is defined as the "false imputation of a crime". Palacio's article is a textbook example of that.
As Correa stated on many occasions and reiterated today, El Universo can end the lawsuit at any moment simply by publishing a rectification and an apology.
Paredes wrote a 10-page decision, contained within a 156-page document including all the lawyers' statements.
Journalists are not above the law. They can campaign to change the law, but in the meantime they have to respect it. What you are advocating here is libel with impunity. That would be terrible for democracy.